Some Legal and Policy Ramifications of Newt Gingrich’s Plan to Colonize the Moon

Speaking last week to an audience on Florida’s “space coast,” Republican Presidential hopeful Newt Gingrich vowed to establish a colony on the Moon by the end of his “second term,” i.e., by the end of 2020. What’s more, Gingrich made clear that he wanted the lunar outpost to be a U.S. project, expressing openness to the possibility of statehood for the Moon colony upon its reaching the necessary minimum population.

For Americans who live on planet Earth, the speech may have seemed to be simply one more piece of evidence that Gingrich’s reputation as an idea man is at best a mixed blessing. Or, as former Republican Senator and 1996 Presidential nominee Bob Dole recently observed about Gingrich’s time in the House of Representatives: “Gingrich had a new idea every minute and most of them were off the wall.”

But before succumbing to the temptation to mock Gingrich’s grandiosity—which he expressly embraced in the space coast speech, comparing himself to Lincoln, among others—it is worth asking whether there is anything to Gingrich’s plan. Although the particulars of the Gingrich Moon-colonization plan are flawed, the basic concept is worth discussing.

Technological Limits

Before evaluating the legal and policy ramifications of Moon colonization, we might ask whether it is technologically feasible. Promising in 2012 to establish a Moon colony by 2020 looks quite similar to President Kennedy’s 1961 goal of putting a man on the Moon by 1970. Given that we were able to accomplish Kennedy’s goal of landing a man on the Moon using 1960s technology, it might seem like a relatively small step to colonize the Moon using modern technology.

And yet that seemingly small step may require something more like a giant leap. To establish a substantial colony on the Moon would mean transporting at least a few dozen people and a great deal of equipment and supplies.

Such a task poses two broad categories of technological challenges. First, engineers would need to fashion the necessary equipment for living in an environment with no atmosphere. Experiments with closed living spaces, such as Earthbound biodomes, and the decades-long experience with the international space station, provide a good base of knowledge on this score, but we are still nowhere near where we would need to be in order to place a self-sustaining colony on the Moon.

The second challenge is simply one of transportation. All of those colonists, their equipment, and their supplies would require spacecraft that could carry a payload many times larger than the payloads of the Apollo rockets that propelled astronauts to the Moon in the 1960s and 1970s. Here too, we have made advances since the Nixon Administration, but, of course, the basic physics have not changed.

It takes an enormous amount of energy to push a human being out of the Earth’s gravitational grasp. Cost is a rough proxy for difficulty, and so we can gain some insight into the challenge by noting that Virgin Galactic is currently charging $200,000 per person for what will be just a few hours of sub-orbital space flight.

Of course, Virgin Galactic is a private company that does not have the resources of the federal government, but then, with the Space Shuttle having recently flown its last mission, the United States currently has no operational means of transporting people into space. Gingrich pretty clearly meant to signal that he would like to change that state of affairs, but he has not said that he thinks the government should get back into the business of launching humans into space. Nor has he said how, as a tax-cutter, he would pay for colonization. In his speech, and later, during Thursday’s debate, Gingrich merely offered that government could provide financial incentives for private space-exploration firms.

None of the above is to say that colonizing the Moon is technologically impossible. But at the very least it is a large and costly challenge. When NASA most recently addressed the issue, it proposed building an outpost to be occupied for six-month periods, not a whole self-sustaining colony. And even that much more limited idea was subject to withering criticism.

Legal Obstacles to Colonizing the Moon

Suppose that scientists and engineers were to rapidly overcome the technological obstacles to colonizing the Moon. Still, there remains an important legal obstacle.

Some Moon-colonization enthusiasts have noted that the United States is not a signatory to the U.N. Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. Thus, establishment of a lunar colony that sought to assert U.S. sovereignty, is not constrained by Article 11.2 of that agreement, which provides: “The Moon is not subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means.”

However, the United States did sign and ratify an earlier treaty that appears to include the same limitation. The Outer Space Treaty (as it is popularly known) was ratified by the United States in 1967. Its Article II categorically states: “Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”

To be clear, neither treaty bans space colonization per se. What the treaties both forbid is space colonization for the purpose of establishing national sovereignty. Yet achieving statehood for a U.S. lunar colony—as Gingrich has proposed—would necessarily entail that the colony would be under U.S. sovereignty, thus violating our obligation under the Outer Space Treaty.

Well, so what?, readers may ask. The United States has withdrawn from treaties in the past. Why couldn’t it also withdraw from the Outer Space Treaty if that treaty stands in the way of making the Moon the fifty-first state?

The short answer is that here, as in other instances, we should adhere to a treaty that limits our freedom of action because of its reciprocal effect on other signatories. Like the U.S., neither China nor Russia is a signatory to the more recent U.N. agreement on the Moon, but all three countries have signed onto the Outer Space Treaty. If the U.S. renounces that treaty, other countries may rapidly do so, too. And if the U.S. loses the race to build a colony on the Moon, then we will cede the Moon entirely to rivals. Or, worse yet, if the U.S. and rivals stake competing sovereign claims to parts of the Moon, we could even court armed conflict on the Moon. Of course, neither result is remotely desirable.

Thus, a distinctively U.S. lunar colony, as a sovereign territory, is both illegal and a bad idea. But an international lunar colony may stand on a different footing.

The Kernel of Sense in the Gingrich Proposal

Even a stopped clock is right twice a day and even a lunatic may have the kernel of a good idea. What is the kernel of sense in former Speaker Gingrich’s latest silliness? Simply this: Colonization of space could hold the key to the long-term survival of human civilization.

With a little tweaking, we can reimagine Gingrich’s lunar colony as an outpost of humanity, not just the United States. If so, we might think of it as a kind of lifeboat for our species.

Environmental catastrophe, an asteroid strike, or a nuclear war could some day render Earth uninhabitable. That would be a tragedy of unparalleled proportions for the people and other animals then living on the planet, of course, and space colonization would not offer a way out for any but a tiny fraction of our current population.

Yet such a global catastrophe would not only mean the ends of billions of individual lives. It could also mean the end of humanity itself. If we manage to establish self-sustaining colonies on other worlds before disaster strikes, however, then our species, if not most of its extant members, can survive. Thinking about lunar colonization today could preserve our species in the future.

Recent discoveries of substantial quantities of water on the Moon make it a potentially hospitable target for eventual colonization. And even if the Moon ultimately proves to be an inferior home for colonies, as compared to Mars or one of Saturn’s moons, much of the work that would go into developing technology for extraterrestrial colonization of the Moon would likely be equally useful on other planets or their moons.

To be sure, thinking about how to ensure that our species survives might lead us to conclude that lunar colonization is a huge and costly distraction. Perhaps the resources that a President Gingrich would devote to colonizing the Moon should, instead, be devoted to developing technologies to track and deflect comets and asteroids of the sort that have led to past mass extinctions. Species-saving efforts might also be devoted to reversing global warming and building world peace.

The important point is not so much that we should colonize the Moon. Rather, it is that we should think about the reasons we might have for colonizing the Moon, and whether those reasons might instead—or additionally—justify other urgent actions here on Earth. If Newt Gingrich’s lunar politics leads to a conversation about these matters, then his quixotic campaign will have done some good.

Pingback: Some Legal and Policy Ramifications of Newt Gingrich’s Plan to Colonize the Moon – Justia Verdict | Law Advice()

Anonymous

Right now I’m more concerned about the economy and afraid Republicans will be making others pay for their pork – and this is a big one.

Some may support Gingrich (or Palin or Bachmann) no matter what they say or do, but this is the end of Gingrich. All flavors of the week/sideshow candidate die off soon enough – in any case, none would win a general election.

Anonymous

This is the end of Gingrich.

http://pulse.yahoo.com/_YKSNMOOKV2VNV4QX4ICC3IJ4ZY Lili Q

Yeah, we don’t have the technological expertise to compete with the Red Chinese (who steal, and duplicate our advancements(

Anonymous

Gingrich is over with now.

Anonymous

Gingrich is great.

Anonymous

This wouldn’t be an issue if Sarah Palin was running for president.

Anonymous

This is all Obama’s fault.

Pingback: Some Legal and Policy Ramifications of Newt Gingrich’s Plan to Colonize the Moon | Alien Guide to Planet Earth()

Pingback: Romney’s strength with…()

dave mcfarland

Romney called it right.

Newt was pandering to the Forida Space Coast.

Big ideas. GIGANTIC ego.

dave mcfarland

Romney called it right.

Newt was pandering to the Forida Space Coast.

Big ideas. GIGANTIC ego.

We need someone who will divest Washington of power, not another right wing tyrant to replace the left wing tyrant.

http://profile.yahoo.com/443L6M4VCRUT5TACYFNFIXO2L4 David

Quixotic? How about nuts.

http://pulse.yahoo.com/_YKSNMOOKV2VNV4QX4ICC3IJ4ZY Lili Q

Yeah it is psychotic to think that the United States could ever consider competing with the Red Chinese in space.

http://www.facebook.com/profile.php?id=100001956652441 Mark Finnan

This is the first politician with ideas to even comes close to the America I grew up in and I don’t give a damn what this article says, we need progress not regress !!!

Anonymous

We could pay for it by cutting food stamps and giving a tax cut to the wealthy.

Hawking and others have told us that for us to survive as a species we will need alternatives to earth to live on. However, it would seen that a GLOBAL initiative, enlisting all countries on earth in a joint effort, for the good of humankind is preferable in the long run to one country “owning” the moon (which is virutally what would happen). IMHO

Ben

Only sovereignty and the property rights that flow from it will justify the investment needed to establish a lunar colony.

Conway The Contaminationist

This article is little more than mental masturbation, as are Gingrich’s hare-brained ideas.

Jes Beard

In seeing the value or potential for space colonization as strictly being preservation of the species in the event of some catastrophe on earth leaving Earth uninhabitable, you implicitly see it as an enterprise which would only be of interest to government, only possible thru government investment, and presumably would also believe that the laws governing any colony should reflect that, with the result being that the laws who essentially limit colonization to that.

Gingrich’s suggestion is almost the opposite, that the colonization should be by private enterprise, with the law covering the colony intended to not just allow that, but to encourage that.

Without at least trying that approach, it is quite foolish to dismiss it.

Our Omnisicient Obama has issued his proclamation prohibiting the United States from any manned space program for at least 35 years, and that must be limited to access of a nondescript asteroid (that will not offend our superiors, the Red Chinese) All hail Obama

Ishmael

Great idea, maybe the Tea Party supporters will have first crack at moving with him to a relocated White House! Maybe then there will be some progress here on earth.

Anonymous

I don’t think there’s any question that one day we will colonize moon. The only question is when will it make technological sense and for whom. Right now I find it hard to imagine any government fronting a colonization effort unless there was an overwhelming benefit for those living here on Earth. Certainly there are scientific justifications, but right now nothing strong enough to justify the expense. I predict that one day, when our technology is a little more advanced, some well-heeled rebellious political splinter group will repeat history and found a Lunar colony based on their own ideals and principles. It’s only a matter of time.

http://pulse.yahoo.com/_YKSNMOOKV2VNV4QX4ICC3IJ4ZY Lili Q

The real question is whether we will be able to colonize the moon, if we permit authoritarian military cultures to colonize it first.

http://pulse.yahoo.com/_BTBM5NDSPUP7Z3VUBCBIQA5CLA Rocky

Newt’s grand plan to eat cheese and hook up with moon maids on the dark side.

Blair

I’m all in favor of the colonization of space. First the Moon, then Venus, Mars, and Ganymede.

http://pulse.yahoo.com/_TCVESBJV47IE3OBGLRDBQLTREQ rocketman

I think that one day in the future it will happen but not with the U.S. government. We are totally broke and simply can’t afford it. It won’t be long before the U.S. decides between feeding it’s out of work people or trying to maintain its shaky empire. Money for such a expensive venture will be savagely attacked by the average citizen if it does.

http://pulse.yahoo.com/_YKSNMOOKV2VNV4QX4ICC3IJ4ZY Lili Q

Reading an attorney’s views of the US technological status regarding space colonization is a little like 5ht Grade Johnny’s late night report written about a movie he saw instead of even consulting an encyclopedia, but that was the point of the article–to mislead the uninformed and ridicule the obvious, so as to succede without the ability to succede? The critical twisting of logic by manipulating the prejudice of the uninformed?

We as a nation will either colonize space and continue to lead the world, or we will capitulate to the Red Chinese and be subjugated, personally I prefer leading over being subjugated, but that’s just my European heritage.

Stephen Russell

Yes & Jobs, jobs for ALL. Do the lunar base.

box-bb-car

The author raises one item that he proposes excludes consideration of a moon base, that of altering the course of asteroids on a collision course or near collision course. There is much to be said for a moon based solutin for this purpose. Because of the smaller gravitational effects of the moon, it would be easier to launch an object off it’s surfacetowards an asteroid, and perhaps at a greater velocity (say by utilization of a large scale linear motor or rail gun). It should be possible from that scenario to “nudge” an asteroid from it’s path with repeated blows instead of attempting to destroy the object, which would likely still lead to catastrophic damage from the fragments striking earth. The same method could be used to deliver a “paint job” of sorts, coating the asteroid in a reflective coating and allowing the sun to supply the force for course change (This has been proposed, except it would be probes applying the coating) However, that being said, the devil is in the details. Costs would most likely be prohibitive even in good times. In addition, any such system capable of lauching objects to divert an asteroid could also be used to launch that object towards earth targets, with much the same efficacy as the steroid. Man may be destined for the stars, however my own thought is that as a race we are much too primitive emotionally to be successful. A perfect example is the Democratic party, which relies almost solely upon emotion to drive it’s constituency. As anyone who has experienced a whirwhind youthful roamnce can tell you, it seldom ends well.

http://www.facebook.com/people/Lyle-Upson/100000816677447 Lyle Upson

…..

long time goal – the removal of industry from surface Earth

consequences – the colonisation of LEO, Lunar, asteroids and Mars

short time goal – a Cis-Lunar infrastructure

consequences – the capacity to launch to Mars

immediate time goal – the mining and conversion of moon water

consequences – the reduction in costs to LEO

methodology – NASA create a moon-base as the anchor for private prospecting

consequences – a space market arises

Wonderer

I don’t agree with your interpretation of the Outer Space Treaty at all. There is no legal obstacle to establishing an American colony, which would operate under the jurisdiction of the United States, on the moon. What the OST prohibits is ‘national appropriation’ – that is to say, the extension of property rights over any part of outer space by any means whatsoever. But this does not mean that the use of Outer Space by individual states is prohibited. Indeed, article 1 of the OST specifically permits the ‘exploration and use’ of outer space by States. Article IV makes it clear that peaceful use of the moon by State parties is permitted. Indeed, colonies and other kinds of installations are address by the treaty. Thus, art. XII states that ‘all stations, installations, equipment and space vehicles on the Moon… shall be open to representatives of other States Parties to the Treaty on a basis of reciprocity.’ Furthermore, while appropriation of the moon as such is prohibited, any structures, equipment or vehicles sent to the moon will remain the property of the state on whose registry they are listed (art. VIII). It is, therefore, permissible to colonise the moon under the terms of the OST. Indeed, the Moon Treaty (to which the US is not a party) makes this even clearer. Art 12(1) states that parties shall ‘retain jurisdiction and control over their personnel, vehicles, equipment, facilities, stations and installations…’

The critical distinction is between use on the one hand, and appropriation on the other. Use of outer space and the moon, including through colonisation, may be lawful depending on the nature of the colony.

Garrett from Texas

Politics aside; regardless of the treaties mentioned above, I doubt you will see any country that first establishes a colony on the moon adhering to those treaties. Reason being is the strategic military advantages of a lunar base. There would be no competing for the moon. Whoever got there would have the instant means based on “ultimate high ground” to prevent anyone from approaching the colony from Earth with express permission.

For that reason alone, the moon MUST be colonized by an international effort in order to prevent claims of soverignty. However, there you have a new problem. Let’s say an international effort leads to a truly self sustaining base (regardless of location). If resources from Earth become unnecessary, then Earth becomes unnecessary.

Considering how disenchanted most people from most countries are with their current administrations and the global economy, you may still end up with a sovereignty issue. One where the new foreign power has the ultimate high ground on the Earth.

Cornell University law professor Michael Dorf considers to what extent defamation law provides a remedy for people who appear in deliberately misleading audiovisual recordings, as in the recently... more

Cornell University law professor Michael Dorf discusses a recent decision by the U.S. Supreme Court that provides a window into how the Roberts Court understands its role with respect to economic... more

Cornell University law professor Michael Dorf discusses three possible methods that some states might use to resist implementing the U.S. Supreme Court’s recent same-sex marriage ruling. Continue... more

Cornell University law professor Michael Dorf discusses the U.S. Supreme Court’s decision, released earlier this week, in Kerry v. Din, in which the Court rejected a claim that a U.S. citizen was... more

Cornell University law professor Michael Dorf discusses the U.S. Supreme Court’s recent decision in Taylor v. Barkes, which illustrates the current breadth of the doctrine of qualified immunity.... more

Cornell University law professor Michael Dorf describes how the dissenting opinions by Justices Scalia and Thomas in Comptroller of the Treasury of Maryland v. Wynne are inconsistent with their prior... more

Cornell University law professor Michael Dorf considers the intricacies of a question Justice Antonin Scalia posed during last week’s oral argument in the same-sex marriage cases—whether, if the... more

Cornell University law professor Michael Dorf describes the journey of the issue of same-sex marriage that has led to its reaching the U.S. Supreme Court this Term. Dorf explains what this path says... more

In light of recent controversy in Indiana and Arkansas over RFRAs, Cornell University law professor Michael Dorf discusses the nuanced question whether courts should interpret a general RFRA to apply... more

Cornell University law professor Michael Dorf argues that modern constitutionalism supports economic libertarianism, due not only to judicial decisions but also the very structure of the Constitution.... more

Cornell University professor Michael Dorf discusses last week’s oral arguments in King v. Burwell, the case in which the U.S. Supreme Court is expected to decide the fate of the Affordable Care Act... more